The opinion of the court was delivered by: SAND
HONORABLE LEONARD B. SAND, U.S.D.J.
This product liability action arises from the death of Alice Kilvert, the fifteen-year old daughter of plaintiffs Peter Kilvert and Jennifer Hilary Kilvert ("the Kilverts"), Personal Representatives of the Estate of Alice Kilvert, from Toxic Shock Syndrome ("TSS"). At the time of her death, plaintiffs' decedent was using a Tampax Super Absorbency tampon, designed and tested by defendant Tambrands, Inc. ("Tambrands"). Plaintiffs allege that the use of viscose rayon, instead of all-cotton, in the tampon product contributed to the development of the fatal TSS.
Defendant has moved for dismissal of this action on the ground of forum non conveniens. Plaintiffs are citizens of the United Kingdom, as was Alice Kilvert, whose use of defendant's product and whose death both occurred in England. The tampon product used by Alice Kilvert was designed and tested by Tambrands in the United States, but was manufactured, marketed, and sold in the United Kingdom by Tambrands Limited, a wholly-owned English subsidiary of Tambrands. Defendants maintain that England is a more convenient and fully adequate alternative forum for this litigation. Plaintiffs, however, argue that they are financially unable to prosecute their claims in England and that England is thus, effectively, an inadequate forum.
After considering the arguments of the parties, raised both in the papers and at oral argument on September 28, 1995, the Court grants the motion on the conditions agreed to by Tambrands, namely that (1) Tambrands will subject itself to jurisdiction in England, (2) Tambrands will waive the statute of limitations, (3) Tambrands will provide access to sources of proof within its control, and (4) Tambrands will make witnesses in its employ available in England and at its expense.
Plaintiffs commenced this product liability action on November 23, 1994. The Kilverts are citizens of the United Kingdom. Defendant Tambrands, Inc. is a Delaware corporation with its principal place of business in New York.
Plaintiffs' decedent, Alice Kilvert, a British citizen, died in England on November 26, 1991, as a result of TSS. At the time of her death, Alice Kilvert was using, in England, a Tampax Super Absorbency tampon, designed and tested by defendant in the United States and manufactured, marketed, and sold by Tambrands Limited, defendant's wholly-owned English subsidiary, in the United Kingdom. Tambrands Limited is incorporated under English law and has corporate offices in Woking, England. It conducts business solely in the United Kingdom.
The tampon products used by plaintiffs' decedent contained viscose-rayon rather than all-cotton fibers. Plaintiffs allege that viscose rayon increases the production of a toxin known as Toxic Shock Syndrome Toxin-1 ("TSST-1") in menstruating women who carry staphylococcus aureus in their vaginal cavity during menstruation. Thus, plaintiffs claim that defendant's product played a contributing role in the development of the fatal TSS in Alice Kilvert. Plaintiffs further allege that defendant knew that all-cotton, as opposed to viscose-rayon, fiber tampons were the safest tampon product that could be manufactured. The Kilverts also claim that defendant knowingly caused to be published, in England, through its agent, the Association of Sanitary Manufacturers, fraudulent misrepresentations about the dangerous propensities of its English, viscose-rayon product.
It is undisputed that defendant's English subsidiary, Tambrands Limited, had sole responsibility for the manufacturing, marketing, and distribution of all Tampax tampons sold in England at the time of Alice Kilvert's death. Its responsibilities in this regard included developing the usage instructions and TSS warnings on all Tampax tampon packages sold in the United Kingdom and all Tampax print and media advertising that appeared in the United Kingdom. In their Complaint, dated November 23, 1994, plaintiffs originally named Tambrands Limited as a defendant. However, as inclusion of the British company defeated diversity jurisdiction under 28 U.S.C. § 1332 (1993), plaintiffs subsequently amended their Complaint to name Tambrands Inc. as the sole defendant. See First Amended Complaint, March 2, 1995 ("Amended Complaint").
The Amended Complaint lists six Claims for Relief: (1) fraud and deceit, based on defendant's knowing misrepresentations and omissions; (2) negligent misrepresentation; (3) intentional infliction of emotional distress; (4) negligence, for breach of defendant's duties both to provide a reasonably safe product and to warn of existing dangers; (5) strict liability, for design, manufacture, and sale; and (6) breach of implied warranty, arising from defendant's manufacturing and marketing.
Defendant has moved this Court for dismissal of the First Amended Complaint on the ground of forum non conveniens, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6). Tambrands maintains that England is an adequate and more appropriate alternative forum for this litigation. Defendant has agreed to (1) subject itself to jurisdiction in England, (2) waive any statute-of-limitations claims, (3) provide access to sources of proof within its control, including documents located in New York and Massachusetts, Memorandum of Defendant Tambrands Inc. in Support of its Motion to Dismiss the Amended Complaint at 17; Schlesinger Aff. P 8; Reply Memorandum of Defendant Tambrands Inc. in Support of its Motion to Dismiss the Amended Complaint at 21, and (4) make witnesses in its employ available to plaintiffs for deposition and trial in England at defendant's expense, Transcript of September 28, 1995, Oral Argument at 2 ("Tr. of Oral Arg."). However, plaintiffs, whose income is too high to qualify them for legal aid in Britain, claim that they are financially unable to pursue a law suit in England, Plaintiffs' Opposition to Defendant's Motion to Dismiss the Amended Complaint on Grounds of Forum Non Conveniens at 3-4 ("Pls.' Oppos."); Pls.' Exhs. 7 P 2(b) (Peter Kilvert Aff.), 8 P 2(b) (Jennifer Hilary Kilvert Aff.), and that, practically speaking, England is thus an inadequate alternative forum.
Specifically, the Kilverts have provided the following details of their financial status.
Peter Kilvert's annual after-tax income totals pounds sterling 15,240. The annual after-tax retirement income of Jennifer Kilvert amounts to pounds sterling 8,000. Their assets include a house valued at pounds sterling 100,000, which secures total mortgage indebtedness of pounds sterling 25,000, an automobile on which annual payments are owed, and two bank accounts, each containing pounds sterling 10,000, representing the lump-sum retirement payment to Jennifer Kilvert of pounds sterling 20,000. Their estimated annual expenses, which includes mortgage and ...